Tabler v. Castle

Eccleston, J., delivered the opinion of this court. The bill in this case was filed in the circuit court for Frederick county, on the 30th of January 1854, by John A. Castle, (the appellee,) against William Tabler, of Lewis, (the appellant.) It is, in form, a creditor’s bill; and states that Peter Tabler, late of Frederick county, in his life time, was indebted to the complainant in the sum of eight hundred and forty-three, dollars and thirteen cents, and interest thereon, in virtue of a single bill, bearing date the 1st of March 1843, which is filed, ¹⁴⁹ and marked exhibit No. 1. The bill also states that the said Peter Tabler was seized and possessed of considerable real estate, and, on the 16th of March 1850, made and executed his last will and testament, and thereby devised all his estate, real and personal, after the payment of his debts, to William Tabler, of Lewis, of Frederick county, and thereby constituted the said William Tabler, of Lewis} his executor. That on or about the 10th day of April 1852} the said Peter Tabler departed this life, leaving his said last will and testament unaltered and unrevoked, and, on the 27th of April 1852, the same was duly admitted to probate in the Orphans (court of Frederick county, and letters testamentary thereoh, weré granted to the said William Tabler, of Lewis, who possessed himself of the personal estate of the testator, left at the time of his decease, which personal estate was very inconsiderable, and wholly insufficient to pay the debts due by Peter Tabler, at the time of his decease.

And the bill prays that the real estate of the said testator, or so much thereof as may be necessary for the payment of the complainant’s claim, and the claims of other unsatisfied creditors, may be sold; and for such further and other relief as may be equitable. A summons was issued, returnable on the 2nd Monday of February 1854, and the defendant was then returned summoned. The defendant having failed to appear, the court passed an interlocutory decree, on the 28th of August 1854, ordering a commission to issue, to take testimony to support the allegations of the bill. The commission was issued the same day, but not having been executed as late as the 16th of February 1855, the court revoked that commission and ordered another,which, being issued on that day, was subsequently executed, and the commissioner returned the same on the 19th of February 1855.

The defendant not having appeared, on tile 20th of August 1855, the court passed a decree for the sale of the real estate which belonged to Peter Tabler, in his life-time, in the bill and proceedings mentioned, or so much thereof as might be necessary, for the payment of the debt due to the complainant mentioned in the bill and proceedings, and interest ¹⁵⁰ thereon, and for payment of other creditors of said Peter Tabler, and costs of the proceedings. During the term in which this decree was passed, William Tabler (of Lewis) filed a petition, stating that the decree was obtained by some mistake and surprise, which was not discovered until a few days previous to the filing of the petition; that the first notice he had in any way of the decree, and of the proceedings upon which it was passed, was by an advertisement of the sale of the real estate in question, by the trustee appointed in the case. The petitioner states positively that there has been some mistake in the supposed service of the summons issued in the case, but hoW that mistake originated, he is unable to state; but he does state positively that if said summons was ever mentioned to him, he utterly misunderstood that matter, for if he had understood that he had been summoned to appear and answer the bill of-complaint of John A. Castle, for any case, he should, without delay, have applied to his counsel to appear to the case and defend the same, as the pretended claim of John A. Castle, which he seeks to enforce, is not justly due and owing to him, but the same has been fully settled and satisfied. That the failure of the petitioner to appear in court, according to the summons, was attributable to the mistake in relation to the service thereof, and not with an intention to delay the complainant in the prosecution of his suit.

That the petitioner does not intend to deny that the deputy of the sheriff may have spoken to him, at some place in the county, in relation to said summons, but if he did, the petitioner did not understand its purport, and by reason of said mistake and the obtaining said decree, he has been taken by surprise, and greatly injured by the decree. The petitioner also states he is advised that he has a good and competent defence to the pretended claim of Castle, if he can be permitted to appear to the case and file his answer, setting forth facts in defence. It is further stated, in the petition, that Peter Tabler, at the time of his death, did not owe to Castle the sum of money, or any part thereof, specified in the said single bill filed with the bill of complaint, but that the same had been settled and satis ¹⁵¹ fied during the life of Peter Tabler, as fully appears by the disposition of an action instituted in Frederick county court, as a court of law, on the same cause of action, in which John A. Castle was plaintiff, and Peter Tabler defendant, which stood for trial on the docket of said court at the February term of the court, and on the 3rd day of March 1846, during said term, that case was entered settled. That the note or single bill on which said suit was instituted, being the same note or single bill now in dispute, remained on file in the clerk’s office, in the said case or action, until after the death of Peter Tabler, and until the 5th day of August 1852, when the same note or single bill was taken from the files of the said case, under and by virtue of an order of the judge of the court, without stating the cause for which it was wanted.

All which, the petition states tffully appears from an extract of said case, the entry settled, the order of the Hon. M. Nelson, of the 5th of August 1852, and a copy of said note or single bill, &c., under the seal of the clerk of the circuit court for Frederick county, here exhibited, marked A, to this petition, which your petitioner prays may be taken and considered as a part of this petition. The petitioner further states, he is advised that if, under the circumstances, the decree of the 20th of August 1854, is permitted to stand unreseinded, and the enrollment unopened, by the tenor and effect of said decree, the complainant therein has established the right to the receipt and collection of the whole amount of the eight hundred and forty-three dollars and thirteen cents, specified in said note or single bill, and the interest thereon, when, in truth and in fact, not one cent is due, and when the decree was obtained by mistake, and when the said John A. Castle, on the 5th of August 1852, admitted, by his affidavit on the back of said note, that the whole sum specified in the note was not all due, but that certain credits, the amount^' of which was not known, ought to be allowed. It is also stated by the petitioner, that he' has fully paid all the debts and claims which have been presented to him in due form of law, due and owing by the said Peter Tabler, at the time of his death, and the petitioner verily believes that no ¹⁵² person has any claim against him, as executor of said Peter Tabler, except the pretended claim of John A. Oastle, and if there be any just claim not paid, the petitioner says he is ready and willing to pay said claim or claims whenever they shall be presented, properly authenticated.

The petition prays the court to crder and direct “that the enrollment and decree in this case, passed on the 20th day of August 1855, be opened, and the said decree vacated, and the said defendant let in to answer said bill upon equitable terms,. unless good cause to the contrary be shown; and that the court will order and direct the trustee appointed by the decree, to surcease from all further proceedings in the case as trustee, until the further order of the court in the premises.” 'There is also a prayer for general relief. The petition was sworn to and filed on the 4th of October 1855, and on the same day the court passed an order requiring John A. Castle, by his solicitor, to appear before the court on the 10th of the same month, and show cause why the enrollment and decree should not be opened and the decree vacated, as prayed; and further requiring the trustee in the case to surcease from all further proceedings as such trustee, until the further order of the court. A few days after the passage of this order, John A. Castle, by his solicitor, filed his answer. JSe says it is not true, as stated in the petition, that the decree of the 20th of August 1855, was obtained by mistake or surprise on said petitioner.

The respondent also states that- the bill of complaint in said cause was filed on the 3Qth of January 1854, that the summons was issued the same day, and delivered to the sheriff, and on or before the 4th day of the ensuing month, it was served upon the petitioner, William Table]-, of Lewis, by Joseph M. Ebbeps, a duly qualified deputy of the sheriff, by distinctly reading the summons to the said petitioner, and thereby informing him of the contents, and object, and command thereof, us will appear from an affidavit of the said deputy sheriff, herewith filed, and marked exhibit A. The respondent further states, that the interlocutory decree in the said cause was not qppiiefi fo)- and obtained until the ¹⁵³ 26th of August 1854, and that a final decree was not applied for and obtained until the 20th of August 1855, so that the petitioner had about eighteen months given him, within which to appear to the bill and file his answer, if he desired to do so, and therefore this respondent cannot, be justly charged with an attempt to surprise the petitioner, as a final decree was not obtained with anything like the expedition which the rules of law and of the court would lia.ve warranted. The answer denies that Peter Tabler, in his life time, paid to the respondent, or to any one for his use, “the sum of money mentioned in said single bill filed with said bill of complaint, or any part thereof, or that the same was settled and satisfied in any manner whatsoever, and he states that at the death of Peter Tabler, the same was due to this respondent,.” He further states, that since the death of Peter Tabler, this respondent instituted an action at law in the circuit court for Frederick county, on said single bill, against the said petitioner, who is the executor of Peter Tabler, and also devisee under